AG intervenes in paddling lawsuit

New York State Attorney General Eric Schneiderman has moved on behalf of the State of New York and the New York State Department of Environmental Conservation to intervene in the navigation-rights lawsuit filed against our editor, Phil Brown, by the Friends of Thayer Lake and the Brandreth Park Association. Schneiderman is defending the position of DEC that the waterways in dispute are open to the public for paddling. The state’s motion also discloses its intent to make counterclaims against the plaintiffs, including a claim that they have created a public nuisance by hindering the public’s right of navigation.

Click the links below for PDF files of the attorney general’s motion and answer to the lawsuit.

Following is the text of a news release issued by the attorney general later in the day:

ATTORNEY GENERAL SCHNEIDERMAN SUES TO PROTECT PUBLIC’S RIGHT TO TRAVEL ON ADIRONDACK WATERWAY

State Seeks to Stop Property Owners from Using Intimidation Tactics Preventing People from Navigating Waterway

Property Owners Used Steel Cables Across the Stream & Set Up Cameras to Intimidate Paddlers

ALBANY – Attorney General Eric T. Schneiderman today announced that the state has filed papers in Hamilton County Supreme Court to join in a lawsuit in order to defend the public’s right to travel on navigable waters in the Adirondack Park.

Schneiderman is seeking an order requiring the Hamilton County property owners, known as the “Friends of Thayer Lake, LLC” and the “Brandreth Park Association” to remove the intimidating signs, cameras and steel cables that they have placed across the Adirondack waterways that flow between Lilypad Pond and Shingle Shanty Brook in an effort to prevent kayakers, canoeists, and other boaters from traveling through their property.

“The public has a right to travel and enjoy this beautiful waterway without being stopped or harassed,” said Attorney General Schneiderman. “I will not hesitate to defend the public’s right to travel on these or other navigable waters. My office will work closely with the Department of Environmental Conservation (DEC) to ensure that the public can once again enjoy this waterway – which connects two state-owned wilderness areas in the Adirondack Park.”

In his filing with the court, the Attorney General states that DEC has concluded that the waterway is navigable-in-fact and that the attempts by the Friends of Thayer Lake to deny public travel along this state waterway are illegal and constitute a public nuisance. Under the law, a navigable waterway may be used as a public highway for travel, regardless of whether it flows over publicly or privately owned land.

“For too long, paddlers have been hindered by unlawful navigation rules along Shingle Shanty Brook, compromising both the enjoyment and safety of one of the Adirondack’s most appealing wilderness destinations,” said Charles C. Morrison, Project Director for the Adirondack Committee of the Sierra Club Atlantic Chapter. “We applaud Attorney General Schneiderman’s commitment to defending the public right of navigation by removing these unlawful travel blockades to New York’s waterways.”

“New York’s lakes, rivers and streams are integral parts of our natural heritage. To the greatest extent possible, they should be open and accessible to everyone,” said Marcia Bystryn, president of the New York League of Conservation Voters. “We applaud Attorney General Eric Schneiderman for intervening in this important case, and we look forward to having legal clarification that affirms the public’s right to travel – without blockage or harassment – on navigable waters that are held in the public trust throughout the state.”

The lawsuit in which Schneiderman has moved to intervene, Friends of Thayer Lake, LLC. v. Brown, was brought in Hamilton County Supreme Court after Phil Brown paddled the route between Little Tupper Lake and Lake Lila, both located in the state-owned “William C. Whitney Wilderness Area,” in May 2009.

Brown traveled along lakes, streams and ponds on State land as well as across a corner of the property owned by the Friends of Thayer Lake and in which Brandreth Park Association has an interest. In November 2010, the Friends of Thayer Lake filed a complaint against Brown for trespassing in state Supreme Court (Hamilton County). In February 2011, the Friends of Thayer Lake amended their complaint by requesting that the court make a determination on their assertion that they own the sole recreational rights to the waters that traverse their property.

The case was referred to the Attorney General by the New York State DEC, and staff from both offices worked cooperatively to file the motion to intervene and counterclaim on behalf of the people of the State.

The Attorney General’s office has a long history of defending the public’s right to navigate in state waters. In 1991, then Attorney General Robert Abrams intervened to defend the public right of navigation in the case The Adirondack League Club Inc. v. Sierra Club. Three successive Attorneys General oversaw that case to its conclusion in 1998 when the Court of Appeals issued its landmark ruling that recreational use of a waterway, and not just prior commercial use, could be considered in determining whether a waterway is navigable and thus open to public travel.

The case is being handled by Assistant Attorney General Kevin P. Donovan of the Environmental Protection Bureau under the supervision of Lisa M. Burianek, Deputy Bureau Chief of the Environmental Protection Bureau. Also assisting in the case, Kenneth Hamm, Associate Attorney, DEC Office of General Counsel.